Citation Nr: 21022213 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-25 719 DATE: April 15, 2021 REMANDED Entitlement to service connection for degenerative arthritis of the left knee, to include as secondary to service-connected status post partial meniscectomy of the right knee with degenerative joint disease, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1975 to August 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The issue was previously before the Board in September 2019, at which time the Board remanded the claim to the agency of original jurisdiction (AOJ) in order to afford the Veteran a VA examination to ascertain the nature and etiology of his left knee disability. Notably, the issues of entitlement to service connection for an acquired psychiatric disorder and service connection for a traumatic brain injury were also remanded by the Board in September 2019. However, service connection for those disabilities was subsequently granted in a September 2020 rating decision. As the award of service connection for these disabilities constitutes a full award of the benefits sought on appeal, those matters are no longer on appeal; and no further consideration herein is necessary. See Grantham v. Brown, F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” issues such as a disability evaluation or the effective date assigned). Entitlement to service connection for degenerative arthritis of the left knee, to include as secondary to service-connected status post partial meniscectomy of the right knee with degenerative joint disease, is remanded. Although it regrets the additional delay, the Board finds that another remand is necessary before the Veteran’s claim can be properly adjudicated on its merits. The Veteran asserts that his left knee degenerative arthritis was either caused by or aggravated by his service-connected right knee disability. Specifically, he contends that his service-connected right knee disability has caused him to favor his left side, thus placing additional stress on his left knee, and that his left knee symptomatology has gradually worsened over time. Pursuant to the Board’s September 2019 remand, the Veteran was afforded a VA examination for his left knee disability. In July 2020, a VA clinician examined the Veteran and diagnosed him with degenerative arthritis of the left knee joint. The clinician opined that the disability was less likely than not incurred during the Veteran’s active duty military service or within one year following his military separation. In so finding, the clinician noted that, insofar as the Veteran’s service treatment records reflect reports of left knee symptoms following the Veteran’s in-service right knee arthroscopic surgery, the medical records likely incorrectly attributed symptoms of the Veteran’s right knee to his left knee, as the symptoms reported after the right knee procedure are medically consistent with convalescence of a knee joint that has undergone surgery. The clinician further reasoned that the earliest medical evidence of record identifying a left knee disorder dates from 2014 and that a lack of medical evidence indicating that the Veteran complained of, or sought treatment for, left knee symptoms prior to that time is “too remote to make a connection with the right knee […]”. Finally, the examiner observed that the 2014 finding of left knee degenerative arthritis is a common condition experienced by patients in the Veteran’s “age group.” Because the July 2020 examiner did not furnish a nexus opinion addressing secondary service connection, the AOJ obtained an addendum opinion concerning whether the Veteran’s service-connected right knee disability caused or aggravated his left knee degenerative arthritis. In September 2020, another examiner reviewed and summarized the Veteran’s relevant medical history. See addendum medical opinion dated September 24, 2020. The examiner concluded that the Veteran’s left knee degenerative arthritis was less likely than not caused by or aggravated beyond its natural progression by his service-connected right knee disability, reasoning that “[t]here is no competent medical evidence that [the Veteran] had a sustained gait disturbance so profound, and for such a long period of time[,] that it caused a compensatory left knee condition.” However, neither the July 2020 nor the September 2020 nexus opinion is adequate for adjudicative purposes, as neither is supported by a sound rationale. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The July 2020 opinion addressing direct service connection is based in part on the inaccurate factual premise that “[t]he first medical records that readily identify an issue with the left knee is in 2014 […]”. Indeed, a thorough review of the Veteran’s claims file demonstrates that mild degenerative changes of the Veteran’s left knee were observed via x-ray imaging as early as 2003. See VA examination dated January 6, 2003. The September 2020 nexus opinion for secondary service connection is also inadequate. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23 (2007). Specifically, the examiner based his opinion largely on an absence of medical evidence documenting a left knee disorder in the years following separation from service, as well as a lack of medical evidence suggesting that the right knee disability has aggravated the Veteran’s left knee disability by manifesting in a “gait disturbance.” Although the clinician indicated that he reviewed the Veteran’s lay statements contained within the record, the clinician did not address the Veteran’s statements concerning the altered gait caused by his service-connected right knee disability and the additional stress placed on his left knee joint. Moreover, the clinician did not explain why such statements are insufficient to establish a history of the left knee joint compensating for the shortcomings of the right knee. Finally, the examiner did not identify and discuss what, if any, scientific or medical bases exist that would support a finding of aggravation by the service-connected right knee disability, other than an altered gait. The Board must ensure compliance with the terms of its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). In the present case, the Board finds that there has not been substantial compliance with its September 2019 remand directives. Therefore, another remand is required in order to procure a medical opinion, addressing direct and secondary service connection and supported by a sound rationale, before the Board can render a fully-informed decision on the merits of the Veteran’s appeal. Accordingly, the matter is REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate clinician for review and for the opinions sought regarding the Veteran’s claim for service connection for left knee degenerative arthritis. ONLY IF another examination is deemed necessary to answer the questions below, one should be scheduled. The clinician is asked to address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left knee degenerative arthritis is etiologically related to his military service? (b.) If not, is it at least as likely as not (50 percent probability or greater) that the Veteran’s left knee degenerative arthritis was caused by or aggravated by any of the Veteran’s service-connected right knee disabilities, including: (i) status post partial meniscectomy of the right knee, with degenerative joint disease; (ii) post meniscectomy of the right knee, with degenerative joint disease and instability; and (iii) painful motion of the right knee associated with status post partial meniscectomy of the right knee? If the clinician determines that the Veteran’s left knee degenerative arthritis was not caused by or aggravated by any of the Veteran’s service-connected right knee disabilities, then the clinician is asked to identify, to the extent possible, the most likely cause of the condition and explain why this is so. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a conclusion as it is the find against it. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The clinician is advised that a finding that the Veteran’s disability was aggravated beyond its normal progression due to the service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. It should be noted that the Veteran is competent to attest to observable symptomatology. The clinician’s attention is directed to the Veteran’s statements concerning the altered gait caused by his right knee disabilities, as well as the additional stress placed on his left knee joint from compensating for his service-connected right knee disabilities. The clinician is reminded that an absence of prior medical documentation of symptoms of, or treatment for, a disability is not, per se, a sufficient basis upon which to find the lack of an association between a current disability and either an in-service event/injury or a service-connected disability. The clinician is asked to provide a complete rationale for all opinions, citing to supporting clinical data and/or medical literature, as appropriate. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.